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Ky Family Law Blog

Posts tagged Child Custody
Lawyers Best Advice: Plan for Holidays Now!!!

Divorce is always difficult. When the holidays approach, it can become even more difficult. This is especially true if you don’t plan for the fact that you will be going through a divorce during the holidays and you are trying to figure out what to do with the children. We all want the divorce to not affect the children, but since you are in the divorce process, it may not be possible for your children to do everything that they are accustomed to doing around the holidays.  While this holiday season may be important, keep in mind that next year there may be a new schedule, so it is in everyone’s best interest to begin planning now.

 

As September is comes to a close, it is important to keep an eye on the upcoming holidays, including school fall break.  Have you worked out how to divide this time during the holidays and school breaks? If you haven’t, it is important to put that on the top of your list and to attempt to resolve those issues prior to the start of the holidays and school breaks.

Courts really don’t like motions about holiday time that are filed the week before that holiday. They don’t have the time available to determine what is the best interest of the child. Proper planning can help you determine what is in the best interest of your child. The Court’s reasoning is that holidays come at the same time each year, if there is an issue, you should have anticipated it earlier. If you want to make sure that your holidays are taken care of, It is much better to address the issue now and avoid attempting to go to the Court at the last minute. If you are unable to agree, this will give you time to bring the issue before the Court.

The issue is addressing the holiday and break times with the person you are divorcing. The following are some tips to address that issue:

1.  Talk. I know it sounds simple, but have a discussion with your spouse about establishing new holiday traditions now, rather than waiting until the divorce is final. Even if the response you receive is no, or I don’t want to, you attempted to resolve the issue prior to going to Court.

2. Understand that your holiday schedule that you have always followed probably won’t work anymore. His parents Christmas Eve, your parents Christmas afternoon, flip that on odd years. It is a lot to try to cram in to a holiday season. Also, remember we are talking about the children, not you or your family. Think outside the box as far as traditions go. Create your new traditions. Attempt to work through scheduling in a way that makes sense for the children first, then you  and finally your family.  I understand that Grandma is important, but it isn’t about her.

3.  Confirm all plans or agreements in writing.  If there is a dispute down the road, this document may prove invaluable and may resolve the issue quickly.

If you cannot reach an agreement, talk to your attorney, who will help you develop a game plan on how to address this issue. The Court’s goal will be to minimally disrupt the child’s life, so hopefully, your family’s past holiday traditions have provided good memories for the children.    Rather than let the change influence your holidays, take this opportunity and plan ahead for a great holiday season for your family.  If your spouse obstructs your efforts to plan, contact your attorney sooner rather than later so any problems can be addressed in a timely manner.

 

Displacing Divorce Myths Part 1: When does the child decide?

In all my years of practice I have heard from numerous clients the age in Kentucky that children get to choose who they want to live with. I have heard 10, 13, 16 and 17 as ages thrown out there. In my own personal experience, it was 11, when my parents sat me down and told me I got to pick who I wanted to live with. The state of Kentucky says that there isn’t an age that children get to pick who they want to live with. In reality, when they are adults is the only time they actually get to decide anything and in Kentucky that is 18.

 

The preferences of a child is one factor that Courts are allowed to consider, however, the child’s preference may not be that persuasive to the Court depending on your situation. In Kentucky, custody or visitation/parenting time is to be determined in accordance with the child’s best interests.  In determining a child’s best interests, the Court is required to consider all relevant factors. One of the many specific factor listed for the Court’s consideration if “…the wishes of a child as to his custodian.” 

 

 

Most mental health professionals caution against ever putting a child in this situation, from personal experience, I can say that many years later, this is still fresh in my mind. The Courts are reluctant to put a child in a position to voice a choice of one parent over the other.  It may be more appropriate to avoid asking a child directly as to preferences and putting that child in the middle of the parents’ divorce. This will shift the focus ofgathering  information from the child indirectly and from third parties as to a child’s preference and focus truly what is in the best interest of the child.

 

The focus of the Courts should be, if a child has a preference, what is the basis for the preference-is the basis of this preferenceThe issues that commonly arise are: whether the parents are manipulating a child to obtain a desired preference; or whether the child is manipulating the parents to get whatever he or she wants or perceives he or she needs.  In addition, there is the possibility of parental manipulation.  Teenagers are good at leaning towards the parent who will be more liberal in their parental supervision. This results in the teenager using one parent against the other. This isn’t because the teenager doesn’t like a parent, but probably because they are more interested in their friends, school or activities In reality  a child’s preferences may not be in the child’s best interests.  The eventual Court determination may indeed be contrary to any such preference.

Parties to a divorce need to understand that a preference of “well let’s just let the child decide, can be highly problematic. Children should never be empowered to make decisions that their parents cannot or refuse to make. Every case is different so the factors for a family are different as well. If a parent places too much emphasis on one factor (what the child wants) this may not be in the best interests of the child. It may create controversy, create further divides in the family structure and at the end of the day be costly for everyone involved.